In 1991 Phillip and Nancy Garrido kidnapped then 11 year-old Jaycee Dugard.  The couple kept Jaycee for 18 years as a sex slave and Phillip Garrido even fathered two children with her.  Justice demands something to be done, something equal to or commensurate with the crimes done to Jaycee Dugard.  Such unthinkable harm raises the question of what morally ought to be done to punish Phillip and Nancy Garrido.  What is the limit that the state could go to in order to begin to rectify what the Garridos have done to Jaycee and to society?   J. Angelo Corlett, in Responsibility and Punishment 3^rd edition, argues that to take justice seriously, the state is obligated to punish criminal offenders like the Garridos in proportion to the harm they have caused.  He argues for a theory of retributive punishment in which criminals receive punishment based on the degree to which they are responsible. 

His central claim is that criminal offenders are justifiably punished (i.e. treated harshly) just in case they have intentionally, knowingly and voluntarily caused harm.  Put differently, criminals deserve punishment if they are responsible for their actions.  However, there are some misconceptions about this retributive theory of punishment.  For example, it seems that exacting proportional punishment is unrealistic.   The reason is that harm done to the victim, such as rape, seems to be completely different in kind than what might justifiably be done to a criminal as punishment, such as incarceration.  Corlett presents an account that meets these objections and misconceptions about proportional punishment. 

In addition to defending retributivism, he demonstrates how his view also deals with the previously difficult notions of mercy and forgiveness.  Further, in a new chapter to this edition he argues why capital punishment, on his view, is not just morally permissible but in some instances morally required.  Finally, he develops an account of collective responsibility based on considerations from recent discussions on individual or personal responsibility.  New to the third edition, Corlett has updated his discussions on responsibility, desert, and mercy and forgiveness to accord with recent literature.

The author begins his work by setting up the conditions required for an adequate theory of punishment.  The argument is that the notion of desert should be understood by focusing on responsibility and proportionality.  So to deserve punishment just means to be responsible for an act.  Following some recent philosophical work on free will and moral responsibility, Corlett maintains agents are liable to punishment for harmful acts they are guilty of performing.  Corlett’s retributivism, then, is concerned with meting out justice by exacting on criminals what they deserve.  The effecting of that punishment is fundamentally to repair a breach in the justice of that society.  Yet on a secondary level, considerations of social utility, either as moral education or as deterrence, may enter into the justification of punishment. 

Kant’s The Metaphysical Elements of Justice offers the foundations of Corlett’s own retributive theory of punishment.  He argues that for Kant punishment “is the State’s right and categorical imperative to inflict hard treatment” (p 55).  But there is a problem for Kant’s theory with the practice of pardoning by the State.  If the State has a perfect duty to punish, then the notion of pardoning makes little sense.  Instead, Corlett urges that we abandon Kant’s hard-line and adopt the weaker claim that that State has a prerogative to punish.  The latter view is Kantian in nature and offers resources to explain punishment in terms of proportionality to desert.

Corlett addresses the problem of proportional punishment through a series of core principles. A punishment is proportional only if to the greatest extent possible:

Without influence by revenge it matches the amount of harm by similar kinds of harsh treatment based on a scaling model of the victim’s and the offender’s perspective of harm that both compensates the victim and negates any advantage of the offender (pp 86-96).

He is clear that this is simply the beginning of a set of principles.  However, his argument shows the notion of proportional punishment is plausible.  Additionally, more worked out theories of punishment must also include principles that safeguard against unjust treatment of offenders as well. 

In the remainder of the book, Corlett sets out to understand the relationship of his retributive theory to questions of mercy and forgiveness, capital punishment, and collective responsibility.  Putting all of this to work, Corlett examines the case of collective responsibility of the U.S. toward Native Americans and whether or not substantial reparations are due.

The argument is thoroughly researched and augmented by current scholarship in ethics, free will, epistemology, and even semantics.  It is an engaging work defending a position that has been in disrepute for some time and I recommend it to anyone interested in questions of moral responsibility and questions about punishment.  Nevertheless, I wish to raise a few points about his principles of proportional punishment. 

Corlett rejects the idea that we should accept a principle of punishment that prohibits inhumane treatment.  He urges that the notion of ‘inhumane’ is vague since many different intuitions exist regarding what kind of treatment would count as inhumane.  Further, there may even be counter examples that suggest that justice sometimes demands inhumane treatment of criminal offenders (e.g., it seems justified to treat someone like Adolf Hitler inhumanely).  This rejection opens up the possibility of ‘in kind’ punishment (pp 85-92).  Perhaps we should build a torture and rape punishment device for those who intentionally, voluntarily, and knowingly torture and rape.  Thus, such offenders can and ought to be, given proportional punishment, subjected to hard treatment similar ‘in kind’ to the treatment they inflicted on others. 

He acknowledges that some might object to this on the grounds of the sacredness human life.  No human being ever ought to be treated in such ways.  But this objection is dismissed as question begging against his position.  The implication is that no supportive argument for such a claim is available.  But this seems false.  In addition to a long history of natural law arguments to this effect, there are even Kantian arguments for the irreducible value of human life. 

It is surprising that Corlett, while advocating a Kantian position, does not examine any such arguments regarding the moral obligation we have not to treat others merely as ends.  Christine Korsgaard, in her Sources of Normativity, has recently presented such a Kantian defense of our obligations to others.  On her view, not only does my humanity obligate me, but another’s humanity does as well.   This is because our human identity is the normative source of our reasons and obligations; it is what provides us with reasons for acting as we do.  Thus, if there is an obligation not to torture one person, because they are human and accorded with certain rights by being human, then there is a moral obligation not to torture anyone, including criminals.  It is true that there are cases of punishment that might qualify as inhumane or might not as Corlett suggests.  But there are also many that are clearly inhumane.  Given certain (perhaps) fundamental obligations we have to other human beings, we ought not to subject even criminals to certain kinds of punishment.

 

Work Cited

Korsgaard, Christine M. The Sources of Normativity. New York: Cambridge University Press, 1996.

 

© 2009 Josef Thomas Simpson